Wasserman's Appellate Summaries

September 13, 2000
By Lawrence Wasserman, Esq.

Netlaw Libraries welcomes back attorney Lawrence Wasserman as a new website contributor. We are pleased to announce that his guest column, which synopsizes the recent decisions from the Ninth Circuit Court of Appeals, the California Supreme Court, the six California appellate districts, as well as some of the recent and interesting decisions from the U.S. Supreme Court, will be appearing as a regular feature for members and guests visiting the Netlaw Libraries website. We hope that you will find it to be a good way to start your legal research day and welcome your comments and criticisms regarding the column.

Nakamura v. Superior Court of Los Angeles County/Oruna
Case No. B139794
California Court of Appeal, Second District, Division Five

*PERSONAL INJURY-UNINSURED DRIVER-LIMITATION OF THE PERSONAL RESPONSIBILITY ACT ON NON ECONOMIC DAMAGES-PUNITIVE DAMAGES NOT SUBJECT TO LIMITATION
Oruna was a passenger in a vehicle owned by her and operated by Vallejo. Neither had the requisite insurance or proof of financial responsibility as required by the Personal Responsibility Act. The driver of the other vehicle, Nakamura later pleaded nolo contedere to reckless driving involving alcohol (wet reckless). Oruna sued for negligence and claimed general and punitive damages. Nakamura's motion to strike the punitive damages was denied. Nakamura then filed a petition for a writ of mandate.
HELD: The Vehicle Code prohibits the recovery of non-economic damages in an action arising out of the use or operation of a motor vehicle if the injured person is an uninsured driver or uninsured owner of the vehicle. The single exception to the statute is if the injury was caused by a defendant who operated a vehicle in violation of Vehicle Code sections relating to being under the influence of alcohol or drugs and was convicted of that offense. Nakamura was not convicted of driving under the influence. He was convicted of reckless driving. The exception does not apply. The statute refers to non-economic and non-pecuniary damages. The terms appear to be interchangeable in this context. Punitive damages do not fit neatly within any of the specific non-economic losses enumerated in the statute. Punitive damages are of a different kind than the non-economic and non-pecuniary damages referred to in the statute and were not included within the limited recovery provision of that statute. Denied the petition for mandate.

Carlsbad Aquafarm v. California Department of Health Services
Case No. D033817
California Court of Appeal, Fourth District, Division One

TORTS-VIOLATION OF CIVIL RIGHTS-CAUSE OF ACTION WHEN NO ENABLING LEGISLATION Aquafarm sued the California Department of Health Services for violation of Aquafarm's due process rights for refusing to provide Aquafarm with notice or a hearing before it failed to re-certify Aquafarm to a list of approved interstate shellfish sellers. Judgment was for Aquafarm.
HELD: Generally a plaintiff cannot sue on a violation of his constitutional rights without some enabling legislation. In the Bivens case, the United States Supreme Court held that the victim of a Fourth Amendment violation by federal officers, acting under color of their authority, may bring suit for money damages against the officers in federal court. The court reasoned that although the Fourth Amendment does not expressly provide for an award of money damages where legal rights have been invaded, federal courts may use any available remedy to make good the wrong done. The lack of any alternate remedy may be a factor supporting the existence of a constitutional tort. This factor is of no help to Aquafarm in this case because Aquafarm had an alternative remedy. Under the Code of Civil Procedure, Aquafarm could have immediately petitioned the superior court for a writ of mandate ordering Department to provide it with due process before it refused to re-issue its permit. Reversed.

Salazar v. Superior Court of Monterey County/The People
Case No. H020621
California Court of Appeal, Sixth District

CRIMINAL-NECESSITY OF PROOF AT PRELIMINARY HEARING OF CHARGED ENHANCEMENTS
Salazar is a defendant in a criminal prosecution for attempted murder. After his preliminary hearing he sought a statutory writ of prohibition of the court’s denial of his motion to set aside two sentence-enhancement allegations of the information for lack of sufficient evidence of gang affiliation and criminal activity in furtherance of the gang; and that petitioner personally discharged a firearm in the commission of the alleged crime.
HELD: An information will not be set aside or prosecution thereon prohibited if there is some rational ground for assuming the possibility that an offense has been committed and the accused is guilty of it. The showing required at a preliminary hearing is exceedingly low. Here there is a total absence of evidence demonstrating the existence of a criminal street gang. The most that can be said is that the evidence implies that there is a group known as "Vagos" or "SEM." But no evidence connects petitioner to such a group. Peremptory writ of mandate issued, directing respondent court to amend its order denying Salazar's motion so that the motion is granted.

State of California v. Superior Court of Los Angeles County
Case No. B140709
California Court of Appeal, Second District, Division One

ORDER
Modification of filed on August 31, 2000, not effecting the judgment.

United States v. Liang
Case No. 99-10578
U.S. Court of Appeals for the Ninth Circuit

CRIMINAL-VENUE FOR CRIME NOT COMMITTED WITHIN THE UNITED STATES-PROSECUTOR COMMENT THAT DEFENDANT IS LYING
Liang was convicted of attempted alien smuggling to a place other than a designated port. The ship used for the smuggling left from China and was intercepted by the Coast Guard and boarded less than one mile from Guam. Liang was indicted in the Northern Marianas. When his motion to dismiss for improper venue was denied he entered a conditional plea of guilty.
HELD: The burden of establishing proper venue rests with the government. By statute, the trial of all offenses begun or committed upon the high seas, or elsewhere out of the jurisdiction of any particular State or District, shall be in the district in which the offender, or any one of two or more joint offenders, is arrested. The offense in this case originated on the high seas and continued into the territory of Guam. Irrespective of where he may have committed the offense of alien smuggling, he was arrested in the Territory and District of Guam, and entitled to venue in Guam. Reversed.

United States v. Velarde-Gomez
Case No. 99-50602
U.S. Court of Appeals for the Ninth Circuit

CRIMINAL-EVIDENCE-FIFTH AMENDMENT-TRIAL COMMENT ON DEMEANOR AND SILENCE OF DEFENDANT AFTER ARREST-HARMLESS ERROR-VOUCHING-INSTRUCTIONS
Velarde-Gomez is a Mexican citizen and legal resident alien. When he was arrested at a border crossing from Mexico 63 pounds of marijuana were found hidden in hid vehicle. His motion to suppress incriminating statements made during interrogation because he was not informed, pursuant to the Vienna Convention on Consular Relations that he could contact the Mexican consulate. His motion to suppress his post-arrest, pre-Miranda warning silence was also denied. He was convicted of importation of marijuana and possession of marijuana with intent to distribute.
HELD: The Fifth Amendment states that no person shall be compelled in any criminal case to be a witness against himself. The prosecution may not use the fact that the defendant stood mute or claimed his privilege in the face of accusation. This case involves comments on post-arrest, pre-Miranda silence and demeanor. After one is in custody, regardless whether the Miranda warnings were actually given, comment on the defendant's exercise of his right to remain silent is unconstitutional. The error was found to be harmless. The prosecutor did not express her personal belief in the accuracy of an officer's report, but pointed to corroboration evidence of its accuracy. It is not misconduct for the prosecution to emphasize that Gomez had time between his arrest and his in-court testimony to make up or fill the gaps in his story. It is also not improper for a prosecutor to voice doubt about the veracity of a defendant who was taken the stand. Gomez's proposed instructions were properly refused. Affirmed.

U.S. West Communications/United States, Intervenor v. Hamilton
Case No. 99-35586
U.S. Court of Appeals for the Ninth Circuit

OTHER-TELECOMMUNICATIONS ACT
This case relates to the Telecommunications Act of 1996 and the requirement that incumbent local exchange carriers allow competitive local exchange carriers to interconnect with their existing networks and to purchase their finished telecommunications service for resale in return for fair compensation.

Chevron v. Cayetano, Governor State of Hawaii
Case No. 99-15108
U.S. Court of Appeals for the Ninth Circuit

CONSTITUTIONAL-REGULATION OF RENT CHARGED BY GASOLINE DISTRIBUTORS-TEST FOR WHETHER REGULATION IS A TAKING
Hawaii enacted legislation that limited the maximum rent that oil companies can collect from dealers who lease company-owned service stations. Chevron sued and its motion for summary judgment was granted.
HELD: States have broad power to regulate the landlord-tenant relationship without paying compensation for all economic injuries that such regulation entails. When a landowner decides to rent his land to tenants the government may place ceilings on the rents the landowner can charge. While property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking. The correct test is whether the legislation substantially advances a legitimate state interest. Although the district court applied the correct standard, it should not have granted summary judgment. Genuine issues of material fact exist as to whether the Act will benefit consumers. Judgment vacated and reversed.

United States v. Foster
Case No. 99-50503
U.S. Court of Appeals for the Ninth Circuit

CRIMINAL-EVIDENCE OF PRIOR CONVICTION FOR RECEIVING STOLEN PROPERTY USED FOR REBUTTAL-VIOLATION OF MIRANDA-POST MIRANDA CONVERSATION WITH PRISONER
Foster was arrested at the U.S. Mexican border when marijuana was found in his vehicle during a random search. He invoked his Miranda right to remain silence, but continued to engage in conversation with a customs officer. He made several incriminating statements. Foster's motion to exclude his statements and a misdemeanor conviction for receiving stolen property as rebuttal evidence was denied. He was convicted of importation of marijuana and knowing and intentional possession of marijuana with intent to distribute.
HELD: For the purpose of impeaching a witness, evidence that the witness has been convicted of a crime shall be admitted if the crime involved dishonesty or false statement. The prior conviction must involve some element of misrepresentation or some propensity to lie. It is not intended to include those crimes that do not carry with them a tinge of falsification. It was error to admit evidence of this conviction. The error was not harmless. The admission of evidence of a prior conviction may be considered harmless only if the government can show that it is more likely than not that there is a fair assurance that the error did not substantially sway the verdict. The questions asked Foster after his arrest focused on Foster's name, address, date of birth, height and weight. Such limited, biographical questions are permitted even after a person invokes his or her Miranda rights. Only questions reasonably likely to elicit an incriminating response from the suspect amount to interrogation. More than the non crime specific conversation between the officer and Foster constitutes the functional equivalent of interrogation. Reversed and remanded.

Wasserman's Archived Appellate Summaries

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